Cecily Zamora
Common law and statutory law are the two main types of laws within a legal system. While they are both essential to how a legal system functions, they differ in their origins and applications. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. Statutory law, on the other hand, is created by legislative bodies and is written and codified. While common law promotes consistency by requiring lower courts to follow the precedents set by higher courts, statutory law is more rigid in its application, with judges applying the law as written. This distinction is particularly important in criminal cases, where understanding both types of law is vital for a skilled attorney.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Statutory law is created by legislative bodies and is written and codified. | |
| Basis | Common law is based on precedent and past judgments. |
| Statutory law has statutes as its basis. | |
| Application | Common law is interpretive and evolves through court decisions. |
| Statutory law is applied as written and is more rigid. | |
| Adaptability | Common law is more malleable than statutory law. |
| Statutory law is both strict and adaptable, as it can be amended or repealed by lawmakers. | |
| Origins | Common law originated from English law following the Norman Conquest of England in 1066. |
| Statutory law is passed by various government agencies, including federal and state governments. | |
| Examples | Common law includes common-law marriage, which recognizes couples as legally married without a formal ceremony. |
| Statutory law includes criminal law, which is uniform across Canada and based on the federal statutory Criminal Code. | |
| Jurisdiction | Common law is followed in most English-speaking countries and former British colonies. |
| Statutory law is followed in most nations worldwide, often in conjunction with common law. |
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What You'll Learn
Common law is unwritten, based on precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts should follow precedents established by previous decisions. The presiding judge determines which precedents to apply in deciding each new case.
Common law is often referred to as "judge-made law", as it is primarily developed through judicial decisions rather than statutes. It is important to note that while common law is unwritten, it may incorporate certain statutes. However, it is largely based on precedent, or judicial rulings made in previous similar cases. In a ""case of first impression", where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
The concept of common law originated in the practices of the English king's courts following the Norman Conquest. It then spread to other parts of the world, including North America during the 17th and 18th centuries. Today, common law is practised in countries such as Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The United States also has a dual system of both common and civil law.
Common law is particularly useful in unusual cases where the outcome cannot be determined based on existing statutes or written rules. It allows for adaptability and interpretation, which is valuable in situations that were not contemplated by the legislature at the time. However, it is important to acknowledge that common law has also led to the unfair marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Statutory law is written, passed by legislative bodies
Common law is a body of unwritten laws based on legal precedents and past court rulings. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is more malleable than statutory law.
Statutory law, on the other hand, is written law enacted by a legislative body. In the United States, federal statutory law consists of acts passed by the United States Congress. These acts are designated as Public Laws or Private Laws. Public laws relate to the general public, while private laws deal with specific institutions or individuals.
Once a bill is passed by Congress and signed by the President, it becomes a Public Law. The legislation receives a Public Law number based on the Congress and when it was issued. For example, P.L. 101-5 would be the fifth law enacted in the 101st Congress.
Public laws are first published as slip laws, which are newly enacted laws. They are printed after an Act is passed by the legislature and signed by the President. These slip laws are then incorporated into the U.S. Statutes at Large, which is a chronological compilation of laws enacted during a congressional session.
The U.S. Code is an official publication of laws currently in force, arranged by topic. It enables researchers to find the particular law they are looking for without needing to know when it was passed.
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Common law can be reinterpreted by judges
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. In other words, common law is decided by judges' interpretation and application of previous rulings to new cases. When a court faces a legal argument, judges determine which precedents to apply in deciding each new case. They refer to previous similar cases and use the judgments rendered then as a basis for deciding the current case.
Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal, and social philosophy. This means that judges can reinterpret common law. In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
Jeremy Bentham, a critic of judicial lawmaking, argued in favor of codification and narrow judicial decisions. However, Oliver Wendell Holmes dissented, stating that "judges do and must legislate." This highlights the controversial nature of judicial interpretation of common law. While judges have the power to reinterpret common law, it is important to consider the potential for judicial overreach or inconsistent application of the law.
Common law has been influential in shaping new legislation. For example, the U.K. has long recognized the common-law offense of "outraging public decency." In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting." In 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, officially criminalizing upskirting. This example demonstrates how common law can be reinterpreted and adapted by judges to address changing societal needs and values.
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Statutory law can be amended or repealed by lawmakers
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions. Common law may incorporate certain statutes, but it is largely based on precedent.
Statutory law, on the other hand, is more malleable than common law. It can be amended or repealed by lawmakers through the legislative process. This process is a cornerstone of the American democratic system, allowing for the protection of minorities and providing all sides with an opportunity to be heard.
The legislative process begins with a proposed draft of a bill, which can originate from diverse sources, including Members of Congress, election campaigns, constituents, citizen groups, and state legislatures. If a bill is voted to be reported to the House, a committee report is written, describing the purpose, scope, and reasons for the bill's approval. All changes to existing laws must be indicated in this report, along with the text of any laws being repealed.
For an amendment to be added to the United States Constitution, it can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. Once proposed, the amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50).
This process of amending or repealing laws is a crucial aspect of the legislative system, allowing lawmakers to adapt and refine the law to meet the changing needs and values of the society they serve.
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Common law promotes consistency
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts should follow the decisions and rulings made in previous similar cases. This promotes consistency in the law, as it provides reasonably precise guidance on almost every issue, allowing parties to predict whether a proposed course of action is likely to be lawful or unlawful. This predictability can provide commercial parties with the assurance they need to proceed with economically efficient contracts that create greater wealth.
Common law is often contrasted with civil law, which relies primarily on codes and statutes. Civil law systems have clear rules for how judges need to rule in specific disputes. In contrast, common law systems are more flexible, as they can respond to changes in society without requiring lawmakers to pass changes in statutes and codes, which can be a lengthy process.
However, it is important to note that common law is not always consistent, as the precedents applied can differ between jurisdictions and individual judges have the discretion to determine which precedents to follow. Additionally, past decisions in common law have led to the marginalization or disempowerment of certain groups, and these outdated or biased rulings can continue to shape future rulings until societal changes prompt a judicial body to overturn them.
Overall, while common law promotes consistency through its reliance on precedent, it is not a perfect system and can lead to inconsistencies and unfair outcomes in certain cases.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as judicial precedent, judge-made law, or case law.
Common law is based on precedent and is interpretive, evolving through court decisions. Statutory law is written and created by legislative bodies. It is more rigid and is applied as written.
Yes, common law and statutory law can coexist and interact with each other. For example, statutory law can codify common law without displacing it.
